Head of US Copyright Office wants to shorten terms, just barely

Timid proposal would go from a term of life-plus-70 years to life-plus-50 years.

US Register of Copyrights Maria Pallante is about to give testimony (PDF) to part of the House Judiciary Committee, in which she proposes that the US government do something it hasn't done, ever—shorten copyright terms.

"You may want to consider alleviating some of the pressure and gridlock brought about by the long copyright term for example, by reverting works to the public domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office," Pallante's written testimony states.

To be sure, that's an incredibly long term. And Pallante is still suggesting that copyright owners be allowed the current life-plus-seventy term if they ask for it. The purpose of copyright law is to stimulate the production of new creative works, and it's not at all clear that your average performer or artist is behaving any differently because they're granted so many decades of exclusive rights.

But the direction is worth noting. Life plus fifty years is less than the current term of life plus seventy years. Corporate-owned works currently get a copyright term of 95 years. The public domain has essentially been frozen for decades now, as each time any works have inched toward their copyright expirations, the entertainment industry has successful argued for a retroactive extension of copyright terms.

The change in tone is meaningful, though. Pallante is an establishment figure through and through; she suggested copyright would break without SOPA, and the Copyright Office has long been uber-sympathetic to industry concerns. The fact that Pallante is even broaching the idea of a shortened term is a suggestion that reformers have made progress compared to where they were even a few years ago. American copyrighted works are scheduled to start becoming public domain again in 2018 unless there is another retroactive extension. That would mean a corporately owned copyrighted work made in 1923 will become public domain in 2018, barring a new law.

Pallante also has some generalized language about how some elements of copyright may need to move from being an "opt-out" regime to being "opt-in." But again, the language is incredibly timid, and she only proposes such changes for "good guy" institutions like libraries and research institutions:

You may wish to reverse the general principle of copyright law that copyright owners should grant prior approval for the reproduction and dissemination of their works—for example, by requiring copyright owners to object or “opt out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries.

Pallante's speech, which is about updating US copyright law, mostly includes a lot of very general talk guaranteed to offend no one. For example: "Congress also may need to apply fresh eyes to the next great copyright act to ensure that the copyright law remains relevant and functional."

Still, her suggestion of a shortened term is still a sign that as copyright arguments heat up toward 2018, it won't be a cake walk for the content industries.

220 Reader Comments

Maybe this will be an end of the ridiculous BS of someone's great, GREAT grandkids being wholly provided for because they wrote a cool song 100 years ago. Except that really it's not the grandkids, it's some dudes in offices.

How about 14 years? There's no reason Nirvana and Pulp Fiction should still by copyrighted. That's plenty of time to make money on album sales, tours, merchandise, sequels, etc. The same applies to software and books.

unless heirs or successors register their interests with the Copyright Office.

It is profoundly unclear to me why heirs or successors who have contributed literally nothing whatsoever should have any claim at all to copyrights.

Should this be considered the Mary Bono protection clause?

This. If the idea of copyright is to allow creatives time to earn from their previous work so that they can continue to be creative and produce for the good of the country, then why does it make sense to allow non-creatives (family and other entities that aren't attempting to create) to receive such protection?

While any shortening of the copyright terms is a good thing, life + 50 is still far too long.

I'd advocate for a 10 year term where the copyright holder has exclusive rights to control the work, followed by another 10 year term in which the copyright holder maintains exclusive commercial (monetary) rights, but where non-commercial distribution (file sharing) becomes legal, with the work entering the public domain after 20 years. There could be a system to extend the second stage if the artist can prove there is still significant commercial value to the work.

As long as companies like Disney are around, you can forget about any copyright term reductions. Mickey Mouse becoming public domain? Forget about it! Not happening. Who do you think was one of the main drivers behind the current ridiculously long terms?

It is a nice dream, but let's be real. Corporations (who have the real power here) will NOT allow any reduction in copyright durations. They can (and will) only go up.

I can maybe see "life of the creator" copyright but this life plus x years is just bullshit. If you went through the trouble to create something special and popular enough to live off of it why would you want your family riding your coattails into the grave? I would think you would want them to create their own special thing.

Of course it's really the media conglomerates that push this kind of stuff. God forbid Disney ever lose the copyright to Mickey and have him fall into public domain!

"All them books, I didn't read. They just sat there on my shelf looking much smarter than me."

Major General Thanatos wrote:

Not to nitpick, but a 20 year cut isn't "barely".

I suppose you could argue that a reduction of 20% is significant, but that really depends on what you consider a reasonable copyright duration. For example, it would take 8 such 20% reductions to get us in the vicinity of 15 years.

As long as companies like Disney are around, you can forget about any copyright term reductions. Mickey Mouse becoming public domain? Forget about it! Not happening. Who do you think was one of the main drivers behind the current ridiculously long terms?

It is a nice dream, but let's be real. Corporations (who have the real power here) will NOT allow any reduction in copyright durations. They can (and will) only go up.

I could see a system where characters and settings could be trademarked and kept exclusive in perpetuity as long as the rights holders continue to create works in that 'world' but where the actual copyrights on the works for those characters enter the public domain. I.e. Fantasia becomes public domain, but Joe off the street can't create and sell a new cartoon featuring a trademaked Mickey.

With this renewal clause, it looks awfully like the big corporations want to take over the little guys work (which won't bother or will forget to renew their copyrights) without the little guys taking over their own work (the big corporations will most certainly and systematically renew their copyrights).

So in the end, it's just another unbalanced law that will favor the people with the money and the staff against everybody else.

As long as companies like Disney are around, you can forget about any copyright term reductions. Mickey Mouse becoming public domain? Forget about it! Not happening. Who do you think was one of the main drivers behind the current ridiculously long terms?

It is a nice dream, but let's be real. Corporations (who have the real power here) will NOT allow any reduction in copyright durations. They can (and will) only go up.

I could see a system where characters and settings could be trademarked and kept exclusive in perpetuity as long as the rights holders continue to create works in that 'world' but where the actual copyrights on the works for those characters enter the public domain. I.e. Fantasia becomes public domain, but Joe off the street can't create and sell a new cartoon featuring a trademaked Mickey.

Surely you don't want to give Hollywood incentives to make even more shitty sequels?!

unless heirs or successors register their interests with the Copyright Office.

It is profoundly unclear to me why heirs or successors who have contributed literally nothing whatsoever should have any claim at all to copyrights.

Should this be considered the Mary Bono protection clause?

This. If the idea of copyright is to allow creatives time to earn from their previous work so that they can continue to be creative and produce for the good of the country, then why does it make sense to allow non-creatives (family and other entities that aren't attempting to create) to receive such protection?

Except that's not the idea of copyright. It's not so that the success of your last book supports you while you write the next book. It's so that you would bother writing a book in the first place. Why would you write a book if someone else could come along and sell copies without having put in the up front effort you did? (Of course, there are always some people who would create art even for free. But the idea of copyright is that we end up with way more art if artists can be assured that simple copying would not destroy their ability to profit from their own hard work.)

So by barring inheritence of copyright, you'd be telling creators: "the value a businessman creates by working hard and building a business can be inherited by his children, but the value that an artist creates by working hard and building creative works cannot be inherited by his children". Seems like a weird position to take.

IP law is an artificial protection for copies of art, which in limited forms encourages the production of art without stagnating the production of new art or damaging the public domain.

A business is a physical entity, it cannot be copied exactly, likewise a physical painting. Mass entertainment on the other hand...

On top of this, making copies of mass entertainment doesn't physically deprive the creator (or other owner) of their copy. Their only loss is the hypothetical earnings due to them as a result of the artificial construct of IP law.

Childish complaints about not being able to pass on some mythical value to an artist's children is laughable when this value is only created due to IP law. Most people can't pass on the value of their work (most of it is stolen from them by their companies and bosses) so I see no case for artificially providing them this extraordinary privilege.

Personally, I don't understand the "Life+" concept. If a 15-year-old writes a book, and lives to be 100, then the copyright was 155 years. If a 100-year-old writes a book, and dies the next year, the copyright was 71 years. Why does that make sense for society?

This is especially true considering the weird distinction between works developed by corporations and by individuals. If I write a book, I get a copyright term of Life+70. If a corporation hires me to write a book, they get a copyright term of 95 years. Why isn't it the same time period either way?

(As an aside, I think both are egregiously long, I just also think it's weird to distinguish between the two systems in that manner.)

Childish complaints about not being able to pass on some mythical value to an artist's children is laughable when this value is only created due to IP law. Most people can't pass on the value of their work (most of it is stolen from them by their companies and bosses) so I see no case for artificially providing them this extraordinary privilege.

Of course the whole thing is artificial. But that doesn't change my argument.

Just because copyright is artificial, doesn't mean that creating valuable works doesn't take effort. And if we believe as a society that such effort should be encouraged, then why cut off that encouragement by refusing to allow people to pass on the fruits of their hard work to their heirs?

Saying "copyright is artificial so the value shouldn't be passed on to one's heirs" is no different than "land ownership is an artificial construct, so land shouldn't be passed on to one's heirs" or "corporate stocks are an artificial construct, so corporate shares shouldn't be passed on to one's heirs" or even more importantly "money is an artificial construct, so money shouldn't be passed on to one's heirs".

But of course, since you think of hard work for pay as being "stolen", maybe I'm wasting my time even discussing this with you.

If this happens, its more significant than some people think. It sends a signal that yes, sometimes we need to think about reducing terms. It would be much easier to propose later on that copyright should have a fixed, sensible term after it's been reduced just a bit once before. As is, there's this mentality "But we've never *reduced* the term before!" It may be what is necessary to make some real change palatable.

Mandatory renewals would also help. Make the rights holders renew the copyright every 2-5 years, with the work immediately entering the public domain permenantly if the renewal is missed (after some reasonable grace period).

unless heirs or successors register their interests with the Copyright Office.

It is profoundly unclear to me why heirs or successors who have contributed literally nothing whatsoever should have any claim at all to copyrights.

Should this be considered the Mary Bono protection clause?

This. If the idea of copyright is to allow creatives time to earn from their previous work so that they can continue to be creative and produce for the good of the country, then why does it make sense to allow non-creatives (family and other entities that aren't attempting to create) to receive such protection?

Except that's not the idea of copyright. It's not so that the success of your last book supports you while you write the next book. It's so that you would bother writing a book in the first place. Why would you write a book if someone else could come along and sell copies without having put in the up front effort you did? (Of course, there are always some people who would create art even for free. But the idea of copyright is that we end up with way more art if artists can be assured that simple copying would not destroy their ability to profit from their own hard work.)

So by barring inheritence of copyright, you'd be telling creators: "the value a businessman creates by working hard and building a business can be inherited by his children, but the value that an artist creates by working hard and building creative works cannot be inherited by his children". Seems like a weird position to take.

Someone inheriting a business has to work hard to make it their own, to make it thrive, to make it adapt. The business continues to add to the economy and community by providing useful goods or services

Someone inheriting rights to a book, song, movie, or painting has to click "print", "copy/paste", or "share". It is not changing or adding more ideas or value to society, merely charging society for access to those views that have been long established.

So by barring inheritence of copyright, you'd be telling creators: "the value a businessman creates by working hard and building a business can be inherited by his children, but the value that an artist creates by working hard and building creative works cannot be inherited by his children". Seems like a weird position to take.

No, the artists' profit can still be inherited by their children.

If an artist makes a song, gets X profit, spends Y, leaves Z to their heirs. Under the current regime, however, they continue to get profits for continued effort or investment.

Replace artist and art with businessman and business. If the kids put forth no effort and sell the business, they get Z. If they continue to work at the business, then they start back at X, which they've earned due to their effort.

So no, it's not at all a weird position to take that artists' heirs should get no further profit from a work.

Childish complaints about not being able to pass on some mythical value to an artist's children is laughable when this value is only created due to IP law. Most people can't pass on the value of their work (most of it is stolen from them by their companies and bosses) so I see no case for artificially providing them this extraordinary privilege.

Life +70 years is the copyright term throughout Europe and much of the rest of the world. It's hard to imagine the US government opting to give American copyright holders less protection.

I am fairly confident that this is the result of the US strong-arming international copyright law through trade agreements.

Life+70 was adopted by first by the EU; the US adopted it several years later to match.

The EU adopted it in 2011.. The US in 1998

EU issued a directive in '93 and it became law in member states during the mid '90s. The US Copyright Term Extension Act was passed shortly afterwards, but I don't know to what extent it was a response to European legislation.

(1) remove "life of the creator" based terms. Pick a fixed term, from creation date, while the copyright of the work is wholly owned by the creator or their heirs. Let's say maximum 75 years. Copyright expires at 50 years unless renewed before then (which can be filed anytime from 25 years onward).

(2) transmittal: any act of transmittal (including works for hire/etc) other than inheritance will reduce the length of the copyright to 15 years from creation or 8 years following the transmittal, whichever is longer at said time.

That's plenty of time for any company to make money off of a work which can conceivably have money made off of it, and gives individual creators strong ownership rights (thus creating an incentive, of sorts, for individual creators).

Yes, it's a nice fantasy, and will never be anything but a fantasy.

As to inheritance and "life term" (without any extension) copyrights: the comparative issue to another business venture (like buying a store) is that once a copyright expires, all value is immediately lost. While it can be argued that the value made over the life of owning the copyright is what should be inherited by heirs (e.g. your $5 million fairy tale publishing deal: they can inherit whatever you didn't blow) but the problem is the corner case of copyrights which were enacted near time of death: if you copyrighted something and died a month after, your investment in producing the item copyrighted goes entirely to nothing if the copyright can not live on to those you would have it bequeathed to, at least by comparison to investment in real property.

tigerhawkvok wrote:

Someone inheriting a business has to work hard to make it their own, to make it thrive, to make it adapt. The business continues to add to the economy and community by providing useful goods or services

Someone inheriting rights to a book, song, movie, or painting has to click "print", "copy/paste", or "share". It is not changing or adding more ideas or value to society, merely charging society for access to those views that have been long established.

Having a copyrighted work is as much a business as any other to actually monetize it. In as much as you can or can't turn parts of the effort it takes to turn a copyrighted piece into money over to someone else, the same applies to any other business: if it's profitable enough to pay someone else to manage it, go right ahead. The same goes for selling either outright to another party. What a ridiculously stupid and obtuse double standard you tried to set.